Business and Human Rights: Energy and Extractive Industries in a Changing Landscape of Next Generation Trade Agreements Protecting and Promoting Both Trade and Human Rights | King and Spalding



[co-author: Mael Clerc, Law Clerk]

Allegations of genocide, forced labor or widespread abuse of minorities in various countries fill the airspace daily; governments are paying more and more attention to business practices abroad. In the EU and its Member States, new national and Union measures are being discussed; human rights concerns are the subject of dispute in bilateral and regional trade agreements, and there is pressure for a “business and human rights(BHR).

The renewed concern for human rights in trade relations builds on the scarce but strong existing scaffolding. In the area of ​​public international law, specific provisions of the General Agreement on Tariffs and Trade of 1947 (GATT 1947) already dealt with prison labor; in the early 1990s, labor and environmental concerns were incorporated into two side agreements of the North American Free Trade Agreement (NAFTA). BHR compliance has already been an important part of global business positioning for some market players: Kimberley Process Certification Scheme (KPCS), for example, set out requirements to control the production and trade of rough diamonds, responding to a strategic need for responsible “conflict-free” production of rough diamonds.

The global framework is being strengthened: as a condition for expanded market access, a new generation of trade agreements are building on existing models to place greater emphasis on the interconnection between human rights. man, the conduct of private enterprises and international trade.

The emerging new paradigm may well pose a challenge to sectors such as energy and extractive industries; competently operated, it could also become an important distinguishing factor for early arrivals.

A changing landscape of international trade law

“Trade and human rights” is not a recent phenomenon; it finds its roots in the bans on the slave trade from the end of the 18th century.[1] After World War II, the horrors of decolonization wars on the one hand, and the expansion of trade under the auspices of the newly created GATT on the other, were so dissonant that despite the inherent links between the two disciplines, the human rights and trade have developed separately and increasingly in divergent ways.

Different disciplines have led to different multilateral agreements and institutions. For practitioners of each discipline, the other was foreign, even as each recognized the importance of the other. For example, with the Declaration on Fundamental Principles and Rights at Work of the International Labor Organization (ILO), states have agreed that labor standards should not be used for trade protectionist purposes. In the same spirit, legal instruments and commercial law institutions recognize the right of States to legislation for the protection of morals, human health and with regard to prison labor,[2] and not only on their own territory, but also in respect of the Global Commons.[3]

In the 1980s and 1990s, driven by domestic politics, the two areas began to converge. The first steps were tentative, as free and non-binding human rights language was incorporated into preferential trade agreements (PTAs).[4] Then came the NAFTA.

NAFTA was the first free trade agreement between developing and developed countries. After the change of the US administration in 1993, Congress demanded stronger protections for the environment and labor, leading to side agreements with specialized dispute resolution mechanisms. Side agreements did not create substantive obligations, but they were among the first steps to formally link trade and human rights in international legal instruments.

A new complex framework hiding opportunities for pioneers

NAFTA was a turning point.

In the revised Lomé IV Convention (1995), human rights clauses were systematically included in EU trade agreements.[5] It is estimated that over 75% of states have concluded PTAs that contain some form of human rights provision.[6]

The proliferation of human rights provisions in trade agreements signals a new reality in international trade.

The new generation of recently concluded or renegotiated trade agreements incorporate language to protect and promote investment and trade without compromising other public policy objectives such as health, safety, environment or labor rights. The international legal framework is complex because the language used is diverse and represents the particular legal framework and the needs of the parties to specific trade agreements.

In some cases, the protection of human rights is part of the legal framework; in others, the references appear to be hortatory.

Even when they are part of the framework, the wording and form of the provisions vary considerably: some include human rights treaties in the general provisions of the investment treaty on applicable law or applicable law (for example, “ any relevant rule of applicable international law ”),[7] some use the language of human rights in the preamble,[8] while recourse to the “non-conforming measures” annexes.[9]

According to UNCTAD in January 2020, 14 new IIAs were signed in 2019, nine of these 14 of the 10 IIAs with publicly available text contain preamble text or substantive provisions relevant to human rights such as the CARIFORUM United States-United Kingdom EPA, the EU-Vietnam IPA, the BIT Brazil-UAE, the Brazil-Morocco BIT, the Armenia-Singapore Agreement on Trade in Services and Investment, the Australia-Hong Kong Investment Agreement, the Brazil-Ecuador BIT.[10]

Complex, of course, and stimulating.

And yet, the landscape presents significant competitive opportunities. From a business perspective, skillfully operated, this emerging new paradigm could become an important distinguishing factor for early adopters.

Opportunity and promise for the energy and extraction sectors

Popular perception of energy and extractive industries goes through periodic phases of positive (income and development) and negative (environmental degradation) perspectives. [11] Each negative cycle ultimately results in national and multilateral regulatory actions that are first resisted and, ultimately, widely adopted. The current dynamic on human rights is no different.

What is certain is that early players will be rewarded in at least three ways: they do the right thing at the right time; they are distinguished from having done so; and, by acting early, they shape the business environment.

Responsible business conduct respecting human rights, sustainability, transparency and the integration of risk-based due diligence is an inexorable positioning strategy for companies and industries to distinguish themselves. By becoming global advocates for business and human rights issues, businesses and industries could also seek to ensure a level playing field.

[1] See, for example, Susan Ariel Aaronson and Jean Pierre Chauffour, The Wedding of Trade and Human Rights: Marriage of Convenience or Permanent Match ?, Available at:

[2] GATT Articles XX (a), (b) and (e).

[3] Appellate Body Report, WT / DS58 / AB / R, adopted November 6, 1998, footnote 24, para. 168.

[4] See, for example, Simma Bruno, Foreign investment arbitration: a place for human rights, International & Comparative Law Quarterly, Volume 60, Number 3, July 2011, pp. 573-596 DOI:

[5] A.-C. Prickartz, I. Staudinger, “ Policy vs Practice: The Use, Implementation and Enforcement of Human Rights Clauses in European Union International Trade Agreements ” [2019] 3 (1): 2. Europe and the world: a review of the law [23]. DOI:

[6] See, for example, Susan Ariel Aaronson and Jean Pierre Chauffour, The marriage of commerce and human rights: marriage of convenience or permanent match?, available at:

[7] See similar or identical terms in Article 42 (1) of the ICSID Convention; North American Free Trade Agreement (NAFTA) art 1131; Energy Charter Treaty (TEC), article 26 (6); Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Agreement, art 40 (1); Japan-Mexico Free Trade Agreement, art 84 (1).

[8] Preamble to the 2002 Free Trade Agreement between the European Free Trade Association (EFTA) and Singapore.

[9] Annex 10-D of the Free Trade Agreement between Chile and the United States; See also the BIT between Japan and Vietnam in 2003 and the Chile-Korea Free Trade Agreement.

[10] Nicholas J. Diamond (Associate Editor), “ 2019 in Review: International Investment Agreements and Human Rights ”, Kluwer Arbitration Blog, February 8, 2020,

[11] OECD (2017), OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, OECD Publishing, Paris.



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